OYCE C IVER - A Humane World

NO. 19-1019

JOYCE MCKIVER, et al.,

Plaintiffs – Appellees,

v.

MURPHY-BROWN, LLC, d/b/a Smithfield Hog Production Division,

Defendant – Appellant.

______________

On Appeal from the United States District Court

For the Eastern District Of North Carolina, No. 7:14-cv-00180

______________

BRIEF OF THE HUMANE SOCIETY OF THE UNITED STATES

AS AMICUS CURIAE IN SUPPORT OF PLAINTIFFS-APPELLEES

AND AFFIRMANCE

_____________________

Anna Frostic

THE HUMANE SOCIETY OF THE

UNITED STATES

1255 23rd Street, NW

Washington, DC 20037

(202) 676-2333

[email protected]

Laura Fox

Peter Brandt

THE HUMANE SOCIETY OF THE

UNITED STATES



(202) 676-2334

[email protected]

Attorneys for Amicus Curiae

May 6, 2019

USCA4 Appeal: 19-1019 Doc: 62-1 Filed: 05/06/2019 Pg: 1 of 45 Total Pages:(1 of 46)

09/29/2016 SCC - 1 -

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT DISCLOSURE OF CORPORATE AFFILIATIONS AND OTHER INTERESTS

Disclosures must be filed on behalf of all parties to a civil, agency, bankruptcy or mandamus case, except that a disclosure statement is not required from the United States, from an indigent party, or from a state or local government in a pro se case. In mandamus cases arising from a civil or bankruptcy action, all parties to the action in the district court are considered parties to the mandamus case. Corporate defendants in a criminal or post-conviction case and corporate amici curiae are required to file disclosure statements. If counsel is not a registered ECF filer and does not intend to file documents other than the required disclosure statement, counsel may file the disclosure statement in paper rather than electronic form. Counsel has a continuing duty to update this information. No. __________ Caption: __________________________________________________ Pursuant to FRAP 26.1 and Local Rule 26.1, ______________________________________________________________________________ (name of party/amicus) ______________________________________________________________________________ who is _______________________, makes the following disclosure: (appellant/appellee/petitioner/respondent/amicus/intervenor) 1. Is party/amicus a publicly held corporation or other publicly held entity? YES NO 2. Does party/amicus have any parent corporations? YES NO

If yes, identify all parent corporations, including all generations of parent corporations: 3. Is 10% or more of the stock of a party/amicus owned by a publicly held corporation or

other publicly held entity? YES NO If yes, identify all such owners:


- 2 -

4. Is there any other publicly held corporation or other publicly held entity that has a direct financial interest in the outcome of the litigation (Local Rule 26.1(a)(2)(B))? YES NO

If yes, identify entity and nature of interest: 5. Is party a trade association? (amici curiae do not complete this question) YES NO

If yes, identify any publicly held member whose stock or equity value could be affected substantially by the outcome of the proceeding or whose claims the trade association is pursuing in a representative capacity, or state that there is no such member:

6. Does this case arise out of a bankruptcy proceeding? YES NO

If yes, identify any trustee and the members of any creditors’ committee: Signature: ____________________________________ Date: ___________________ Counsel for: __________________________________

CERTIFICATE OF SERVICE **************************

I certify that on _________________ the foregoing document was served on all parties or their counsel of record through the CM/ECF system if they are registered users or, if they are not, by serving a true and correct copy at the addresses listed below: _______________________________ ________________________ (signature) (date)


i

TABLE OF CONTENTS

TABLE OF CONTENTS ........................................................................................ i

TABLE OF AUTHORITIES ................................................................................. ii

I. INTRODUCTION .......................................................................................... 1

II. INTERESTS OF AMICUS CURIAE ............................................................ 3

III. INDUSTRY AND REGULATORY BACKGROUND ............................... 4

IV. ARGUMENT .................................................................................................. 9

A. Extreme Animal Confinement and Related Practices Cause Egregious

Animal Suffering that is Intrinsically Linked to the Nuisances at Issue. ............... 9 1. Animals at Smithfield Finishing Facilities, like Kinlaw Farms, are Raised

in Extreme Confinement. ..................................................................................... 9 2. Animals at Smithfield Sow Facilities are Kept in Crates and Piglets are

Born and Weaned in Extreme Confinement. ..................................................... 11 3. Smithfield Pigs are Transported in Extreme Confinement. ........................ 16 4. Antibiotic Use Threatens Human Lives and Makes Extreme Confinement

Possible, Thus Facilitating Animal Suffering. ................................................... 17 5. Additional Animal Suffering Associated with Factory Farming Practices

Used by Smithfield. ............................................................................................ 18 6. Animal Cruelty Witnessed at Smithfield’s Facilities. ................................. 20

B. The Risk of Future Harm is Substantial, Not Just for Plaintiffs and the Pigs in

Appellant’s Care, but for All Animals. ................................................................. 22 1. Smithfield’s Operations Threaten Public Safety with Major Biosecurity

Risks. .................................................................................................................. 22 2. Smithfield’s Practices Increase Climate Change Risks and Environmental

Harms that Impact All Animals. ........................................................................ 27 V. CONCLUSION ............................................................................................. 33

CERTIFICATION OF COMPLIANCE ............................................................. 35

CERTIFICATE OF SERVICE ............................................................................ 36


ii

TABLE OF AUTHORITIES

Cases

Animal Legal Defense Fund v. Herbert, 263 F.Supp.3d 1193 (D.Utah 2017) .......... 8

Animal Legal Defense Fund v. Reynolds, 353 F.Supp.3d 812 (S.D.Iowa 2019),

appeal docketed, No. 19-1364 (8th Cir. Feb. 22, 2019) .......................................... 8

People for Ethical Treatment of Animals, Inc., et al., v. Stein, et al., No. 1:16-CV-

00025 (M.D.N.C. 2017) .......................................................................................... 8

Rural Empowerment Association for Community Help, et al., v. U.S.

Environmental Protection Agency, et al., No. 1:18CV02260 (D.D.C 2018) ......... 7

Statutes

42 U.S.C. § 11000 et seq. ........................................................................................... 7

7 U.S.C. § 1901 et seq ................................................................................................ 5

7 U.S.C. § 1902(a) ..................................................................................................... 6

Cal. Health & Safety Code §§ 25990-94 ................................................................. 14

Mich. Comp. Laws § 287.746 .................................................................................. 14

N.C. Gen. Stat. § 106-701, et seq............................................................................... 6

N.C. Gen. Stat. § 99A-2 ............................................................................................. 7

N.C. Gen. Stat. § 99A-2(d)(4) .................................................................................... 8

N.C. Gen. Stat. §143-215.9D ..................................................................................... 8

Other Authorities

2017 Sustainability Report: Housing of Pregnant Sows, SMITHFIELD .................... 12

2017 Sustainability Report: Sustainability Goals & Targets, SMITHFIELD ...... 14, 15

Am. Pub. Health Ass’n Policy 2003-7, “Precautionary Moratorium on New

Concentrated Animal Feed Operations” ............................................................... 24

An HSUS Report: The Welfare of Animals in the Pig Industry, HSUS ................... 11

Andrew Fraser, Farm Animal Behaviour 181 (Baillière Tindall., 2d ed. 1980) ..... 18

Animal Operations - Swine Lagoons, NC DEQ (Oct. 9, 2018) ............................... 28

Ashley DeDecker, PhD., The Smithfield Experience: Comparing ESF and Trough

Feeding for Group Housed Sows 28, SMITHFIELD (2016) .................................... 12

Bernice Wuethrich, Chasing the Fickle Swine Flu, 299 SCIENCE 1502 (2003) ...... 27

Betsy Freese, Pork Powerhouses® 2018: Ramping Up, SUCCESSFUL FARMING

(Sept. 30, 2018) ..................................................................................................... 12

C. Rosenzweig, M.L. Parry, Potential Impact of Climate Change on World Food

Supply, NATURE 367, 133 (1994) .......................................................................... 31

C.M. Wathes, Aerial Pollutants from Weaner Production, THE WEANER PIG:

NUTRITION AND MANAGEMENT 259-271 (CAB International Publishing, M.A.


iii

Varley, J. Wiseman eds., 2001) ............................................................................ 20

Carolinas Farms Could Take Billions in Losses From Florence, WWAY TV3

(Sept. 22, 2018) ..................................................................................................... 29

Catherine Donaldson-Evans, North Carolina Slaughterhouse Workers Fired for

Brutally Abusing Pigs, FOXNEWS.COM (May. 18. 2015) ...................................... 21

Cherie J. Ziemer, Fate and Transport of Zoonotic, Bacterial, Viral, and Parasitic

Pathogens During Swine Manure Treatment, Storage, and Land Application, 88

J. ANIM. SCI. (2010) .............................................................................................. 24

Corporate Social Responsibility Report 2009/10 54-55, SMITHFIELD .................... 17

D. Smulders et al., Tail and ear biting lesions in pigs: an epidemiological study, 17

ANIMAL WELFARE (2008) ...................................................................................... 18

D.B. Lobell et al., Greater Sensitivity to Drought Accompanies Maize Yield

Increase in the U.S., MIDWEST. SCI. (2014) .......................................................... 32

Defendant’s Motion in Limine to Exclude Evidence of Animal Welfare at Trial,

McKiver, et al., v. Murphy-Brown, LLC, No. 7:14-cv-00180-BR, Doc. 129 (filed

Mar. 12, 2018) ......................................................................................................... 1

Doug Bock Clark, Why is China Treating North Carolina Like the Developing

World?, ROLLING STONE (2018) ........................................................................... 32

Dylan Mathews, America’s Largest Pork Producer Pledged to Make Its Meat

More Humane. an Investigation Says It Didn’t, VOX (May 8, 2018) ................... 15

Farmers Join to Form HSUS Agriculture Advisory Council of the Virginias, HSUS

(Apr. 12, 2018) ........................................................................................................ 4

Gidon Eshel et al., Land, Irrigation Water, Greenhouse Gas, and Reactive

Nitrogen Burdens of Meat, Eggs, and Dairy Production in the United States, 33

PNAS 11999, fig. 4A (2014) ................................................................................ 31

Global Environment Outlook 6 498, UNITED NATIONS ENVIRONMENT PROGRAMME,

(Mar. 4, 2019) ....................................................................................................... 28

Hard To Digest: Greenwashing Manure Into Renewable Energy, FOOD AND

WATER WATCH (Nov. 2016) ................................................................................. 30

Helen Harwatt, Including Animal to Plant Protein Shifts in Climate Change

Mitigation Policy: A Proposed Three-Step Strategy, Climate Policy, 19:5, 533-

541 (November 2018) ........................................................................................... 27

How Big Meat and Dairy are Heating Up the Planet, IATP, GRAIN (July 18,

2018) ...................................................................................................................... 27

Humeyra Pamuk et al., U.S. Farmers Face Devastation Following Midwest

Floods, REUTERS (Mar. 20, 2019) ......................................................................... 29

J.F. Robertson, D. Wilson, and W.J. Smith, Atrophic Rhinitis: The Influence of the

Aerial Environment, 50 ANIMAL PRODUCTION (1990) ......................................... 20


iv

Jacob Bunge, After Florence, Smithfield Plans Fresh Look at Disaster Prep, WSJ

(Sept. 27, 2018) ..................................................................................................... 28

Jerome A. Paulson, Theoklis E. Zaoutis, Nontherapeutic Use of Antimicrobial

Agents in Animal Agriculture: Implications for Pediatrics, 136 PEDIATRICS e1670

(2015) .................................................................................................................... 17

Jim O’Neill et al., Tackling Drug-Resistant Infections Globally: Final Report and

Recommendations, THE REVIEW ON ANTIMICROBIAL RESISTANCE 1, 24 (2016) .. 23

Jon Day, Heleen Van de Weerd, and Sandra Edwards, The Effect of Varying

Lengths of Straw Bedding on the Behaviour of Growing Pigs, 109 SCIENCE

DIRECT (2008) ....................................................................................................... 19

Jonathan Lovvorn, Climate Change Beyond Environmentalism Part I:

Intersectional Threats and the Case for Collective Action, 29 Geo. Envtl. L. Rev.

1, 40 (2017) .................................................................................................... 30, 31

Jonathan Lovvorn, Climate Change Beyond Environmentalism Part II: Near-Term

Climate Mitigation in a Post-Regulatory Era, 30 Geo. Envtl. L. Rev. 224 (2018)

............................................................................................................................... 32

Josh Gabbatiss, Meat and Dairy Companies to Surpass Oil Industry as World’s

Biggest Polluters, Report Finds, INDEPENDENT (July 18, 2018) .......................... 27

Julia Kravchenko, MD, PhD, et al., Mortality and Health Outcomes in North

Carolina Communities Located in Close Proximity to Hog Concentrated Animal

Feeding Operations 79 N.C. MED. J. (2018) ......................................................... 25

K. Kumar et al., Antibiotic Uptake by Plants from Soil Fertilized with Animal

Manure, 34 J. Envtl. Quality 2082 (Nov./Dec. 2005) .......................................... 24

Karen L Tang et al., Restricting the Use of Antibiotics in Food-Producing Animals

and Its Associations with Antibiotic Resistance in Food-Producing Animals and

Human Beings: A Systematic Review and Meta-Analysis, THE LANCET

PLANETARY HEALTH e316 (2017) ......................................................................... 25

Kieran T. Bhatia et al., Recent Increases in Tropical Cyclone Intensification Rates,

NATURE (Feb. 7, 2019) .......................................................................................... 29

KJ Donham, Association of Environmental Air Contaminants with Disease And

Productivity in Swine, 52 AM. J. OF VETERINARY RES. (1991) ............................. 20

Letter from FSIS to Smithfield Fresh Meats Corp., M18079/P27232, Notice of

Intended Enforcement, USDA (Jan. 9, 2019) ....................................................... 22

Letter from FSIS to Smithfield Fresh Meats Corp., M18079/P27232, Notice of

Intended Enforcement, USDA (Oct. 11, 2018) ....................................................... 6

Lisa Sorg, The plot thickens on SBI investigation of Duplin County employee over

hog lagoon tests, NC POLICY WATCH (June 6, 2018) ............................................. 6

Maryn McKenna, The Coming Cost of Superbugs: 10 Million Deaths Per Year,


v

WIRED (Dec. 15, 2014) ....................................................................................... 25

Media Release: Nature’s Dangerous Decline ‘Unprecedented’; Species Extinction

Rates ‘Accelerating’, IPBES (2019) ..................................................................... 30

Neville Gregory and Temple Grandin, ANIMAL WELFARE AND MEAT PRODUCTION

108-109 (CABI 2d ed. 2007) ......................................................................... 19, 20

Our Big Pig Problem, SCIENTIFIC AMERICAN (Apr. 1, 2011) ................................. 23

P. Wallgren, L. Melin, Weaning Systems in Relation to Disease, THE WEANER PIG:


Varley, J. Wiseman eds., 2001) ............................................................................ 18

P.D. Warriss, The Welfare of Slaughter Pigs During Transport, 7 ANIMAL

WELFARE 365 (1998) ..................................................................................... 16, 17

Palmer Holden PJ and M.E. Ensiminger, SWINE SCIENCE 375-378 (Pearson

Prentice Hall, 7TH 3D. 2006) ................................................................................. 19

Petition calling for regulations under the Humane Methods of Livestock Slaughter

Act and Federal Meat Inspection Act that will decrease cruelty to farm animals

at slaughter, at 29 (Sept. 1, 2015) ......................................................................... 21

Phil Walzer, Smithfield Fires Three in Probe of Abuse on Pig Farm, THE

VIRGINIAN-PILOT (Dec. 22, 2010) ......................................................................... 22

Precautionary Moratorium on New Concentrated Animal Feed Operations, AM.

PUB. ASS’N (2003) ................................................................................................. 24

Press Kit: Investigation Exposes Piles of Dead Piglets Rotting In Mother's Feces

At Smithfield, DIRECT ACTION EVERYWHERE ................................................. 12, 21

Press Release: High-Level Meeting on Antimicrobial Resistance, GEN. ASSEMBLY

OF THE UNITED NATIONS (Sept. 21, 2016) ............................................................. 23

Rebecca Goldburg et al., The Risks of Pigging Out on Antibiotics, 321 Science

1294 (2008) ........................................................................................................... 24

Resolution Adopted by the Human Rights Council 3 (2010) ................................... 31

Ritter MJ et al., Effect of floor space during transport of market-weight pigs on the

incidence of transport losses at the packing plant and the relationships between

transport conditions and losses, 84 J. ANIMAL SCI. 2856 (2006) ........................ 16

Ryan McCrimmon, Farmers Brace for Hurricane Florence, POLITICO (Sept. 12,

2018) ...................................................................................................................... 29

Shylo E. Wardyn et al., Swine Farming is a Risk Factor for Infection With and

High Prevalence of Carriage of Multidrug-Resistant Staphylococcus Aureus 61,

CLINICAL INFECTIOUS DISEASES (2016) ................................................................ 24

Shylo E. Wardyn et al., Swine Farming is a Risk Factor for Infection With and

High Prevalence of Carriage of Multidrug-Resistant Staphylococcus Aureus, 61

Clinical Infectious Diseases 59 (2016) ................................................................. 24


vi

Smith et al. Origins and evolutionary genomics of the 2009 swine-origin H1N1

influenza A epidemic, 459 NATURE 1122 (2009) .................................................. 26

Smithfield Foods Makes Landmark Decision Regarding Animal Management,

SMITHFIELD (Jan. 25, 2007) ................................................................................... 14

Smithfield makes more progress on gestation-crate-free pledge, HSUS (Jan. 8,

2018) ...................................................................................................................... 12

Statistics by Subject, “Hogs - Slaughtered, Measured in Head,” USDA (May 4,

2018) ........................................................................................................................ 4

Sundar S. Shrestha et al., Estimating the burden of 2009 pandemic influenza A

(H1N1) in the United States (April 2009-April 2010), 52 CLIN. INFEC. DIS. S75-

82 (2011) ............................................................................................................... 26

Tackling Climate Change Through Livestock: A Global Assessment of Emissions

and Mitigation Opportunities 35, FAO (2013) .............................................. 27, 32

Testimony of Christine Lawson, Artis, et al., v Murphy-Brown, No. 7:14-cv-

00237-BR, Doc. 249 at 144 (July 30, 2018) ........................................................... 6

Testimony of Dr. Terry Coffey, Artis, et al., v. Murphy-Brown, LLC, No. 7:14-CV-

237-BR, Doc. 262 at 138, 143-49 (July 26, 2018) ................................................ 15

The Future of Food and Agriculture: Trends and Challenges 41-44, FAO (2017) 31

The Judicious Use of Medically Important Antimicrobial Drugs in Food-Producing

Animals, FDA CTR. FOR VETERINARY MED. (June 28, 2010) ............................... 23

The welfare of intensively kept pigs: Report of the Scientific Veterinary Committee

4.1.3, (Sept. 30, 1997) ........................................................................................... 19

Timothy Blackwell, Production Practices and Well-Being: Swine, THE WELL-

BEING OF FARM ANIMALS: CHALLENGES AND SOLUTIONS 241-269 (Blackwell

Publishing, G. John Benson, Bernard E. Rollin eds., 2004) ................................. 20

Trifonov et al., The Origin of the Recent Swine Influenza A(H1N1) Virus Infecting

Humans, 14 EURO SURVEILL. (2009) .................................................................... 26

Undercover at Smithfield Foods, HSUS (2010) ......................................... 13, 14, 21

USDA Continues to Prevent African Swine Fever from Entering the U.S.: Provides

New Resources to Raise Awareness of the Deadly Disease, USDA APHIS (Mar.

3, 2019) .................................................................................................................. 26

Yogesh Chander et al., Antibacterial Activity of Soil-Bound Antibiotics, 34 J.

ENV’T. QUALITY 1952 (2005) ............................................................................... 24


1

I. INTRODUCTION

In support of Plaintiffs-Appellees (“Plaintiffs”), the Humane Society of the

United States (“HSUS”) respectfully submits this amicus brief1 with the consent of

all parties to assist the Court in understanding a critical aspect of this case—one that

is wholly ignored by Defendant-Appellant (“Appellant” or “Smithfield”) but which

is central to the nuisances it creates—that is the millions of animals harmed in its

production of pigs.2 HSUS seeks to provide this Court with this missing important

information, which will assist it in understanding the context within which to

evaluate the decisions below. The animals in Appellant’s facilities matter—they are

gentle creatures with surprising intelligence, outperforming most companion

animals—and improving their welfare would go far to abate the nuisances at issue

in this case.

Appellant and its amici paint a picture for this Court of a longstanding, well-

regulated industry that is too big to fail, where independently owned pig-farming

1 No party’s counsel authored this brief in whole or in part, and no person or entity

other than amicus and its counsel contributed to the preparation and submission of

this brief.

2 This is unsurprising given Appellant’s attempts to exclude evidence of animal

welfare at trial. See Defendant’s Motion in Limine to Exclude Evidence of Animal

Welfare at Trial, McKiver, et al., v. Murphy-Brown, LLC, No. 7:14-cv-00180-BR,

Doc. 129 (filed Mar. 12, 2018).


2

operations have been established for years with prudent environmental safeguards.

This characterization is wholesale misleading. For far too long large animal

agricultural corporations have been operating carte blanch with complete disregard

of, and little consequences for, the harms they create. Much of the environmental

and public safety harms Plaintiffs experience are caused by extreme animal

confinement and the industrialized practices of factory pig farming—practices used

by Smithfield.

These practices include confining breeding pigs in crates, overcrowding

animals indoors where they live in their own excrement on concrete floors, and

feeding them antibiotics so they can survive in this unnatural environment. These

pigs are born in complete confinement, in crates where their mothers are kept for

weeks at a time with no opportunity to move around. Crating sows is an inhumane

practice that forces animals to live in a space barely larger than their bodies.

Smithfield publicly promised to phase out their use, but the company still has a crate

policy that inhumanely confines sows for over a third of their lives. Consequently,

Appellant’s history of not meaningfully upholding its promises should inform this

Court in its consideration of Appellant’s current claims.

Further, Appellant and industry interests have successfully pressured

legislative bodies to help protect their ability to operate in a way that harms animals,


3

the environment, and people like Plaintiffs. Accordingly, they have every incentive

to continue cruel and harmful practices, which pose grave economic and public

health threats, and to keep them hidden from public scrutiny.

This poses an existential threat to rural life and livelihood, and to us all, as the

industry’s lack of transparency and accountability perpetuates its risks, especially its

contribution to climate change. If continued unchecked, catastrophic outcomes, such

as the loss of wildlife and habitable, crop yielding land, will result from the

industry’s impact on climate. The solution is not to grant factory farms the right to

harm but to acknowledge their threat and protect public interests. Accordingly, there

are strong reasons to eliminate current incentives which spur cruel, senseless

practices that threaten both public health and the U.S. economy. As such, this Court

should let stand the lower court’s judgment on the jury’s verdict.

II. INTERESTS OF AMICUS CURIAE

The HSUS, a non-profit organization based in Washington, D.C., is the

nation’s largest animal protection organization. HSUS is committed to protecting

and enhancing the lives of all animals, and to fostering the humane treatment of farm

animals, including pigs held in intense confinement at concentrated animal feeding

operations (“CAFOs”). HSUS endeavors to protect farm animals through litigation,

investigation, legislation, advocacy, and education. HSUS works to improve farm


4

animal management in order to promote animal welfare and public safety.

HSUS supports farmers and their businesses. HSUS partners with farmers

who share its passion for high standards of animal welfare—for the sake of animals,

family farmers, the land, and local communities.3 HSUS has a dedicated Farm

Animal Protection team that, among other things, engages in corporate outreach to

help companies transition to more humane practices. Smithfield has been one of

those companies, as alluded to in its sustainability report. JA6479.

HSUS is particularly concerned with the treatment of farm animals and

factory farming’s massive contribution to climate change, which negatively effects

the lives of all animals. The impact of this and similar cases advances Amicus’ efforts

to protect farm animals from horrific animal welfare practices that result in

community nuisances and global environmental harms.

III. INDUSTRY AND REGULATORY BACKGROUND

Yearly, over 100 million pigs are raised and slaughtered in the U.S.4

Smithfield, through its subsidiary, Murphy-Brown, produces the largest share of

those pigs—nearly 20 million annually—making it the largest pork producer in the

3 See Farmers Join to Form HSUS Agriculture Advisory Council of the Virginias,

HSUS (Apr. 12, 2018), https://tinyurl.com/yxmx2rn7.

4 See Statistics by Subject, “Hogs - Slaughtered, Measured in Head,” USDA (May

4, 2018), https://tinyurl.com/y6tfg2tg.


https://tinyurl.com/yxmx2rn7

https://tinyurl.com/y6tfg2tg

5

world. See JA6457. These pigs are raised using large-scale, industrialized, factory

farming techniques that cause animals extreme pain and suffering.

The suffering begins at birth. Smithfield’s pigs are born and weaned

intensively in total confinement operations to mothers who are kept crated so

intensely they cannot move for roughly a third of their lives—an incredibly cruel

practice (see discussion infra pp. 11-15). Smithfield’s 975,000 U.S. sows (JA8941),

female pigs, are used to spawn piglets in sow facilities to be grown at finishing

operations, like Kinlaw Farms. See JA5676. The sows spend approximately four

weeks at a time weaning their piglets in farrowing crates without enough space to

turn around. Their piglets are then transported by truck to finishing operations where

they are held in crowded warehouses, raised on concrete slats, fed antibiotics, and

then transported again on trucks to a slaughterhouse. At slaughter, pigs are shot in

the head with a bolt gun, shackled upside down and slit with a blade from end to

end.

While there are laws in place that aim to promote humane methods of

slaughter, they are routinely violated and under-enforced. Smithfield’s plants have

been cited by federal inspectors for violations of the Humane Methods of Slaughter

Act. 7 U.S.C. § 1901 et seq. At a Smithfield plant in North Carolina that slaughters

approximately 30-40,000 pigs daily (JA8309), a shackled and hanging pig with a


6

bolt hole in his head was still conscious, in violation of 7 U.S.C. § 1902(a), which

requires that animals be rendered insensible to pain before being shackled.5 This is

a recurring problem at this facility (see discussion infra pp. 21-22).

There are no federal laws that regulate the treatment of animals on the farm.

State laws do little to fill in the gap. While Smithfield speaks highly of state laws

that monitor waste reports and other such activity on the farm (see, e.g., O. Br. 4-7),

there are many deficiencies including that “[i]t’s possible that the facility could be

in violation and it’s possible that we might not find out.” Testimony of Christine

Lawson, Artis, et al., v Murphy-Brown, No. 7:14-cv-00237-BR, Doc. 249 at 144

(July 30, 2018). Just as troublesome, several scandals have emerged about under or

false reporting in waste reports.6

In fact, many state laws favor the industry and make it difficult to ensure

humane treatment on the farm. In North Carolina, big agricultural interests,

commonly referred to as “Big Ag,” aggressively lobbied for the passage of a Right

to Farm Act and its various amendments. N.C. Gen. Stat. § 106-701, et seq. This law

5 Letter from FSIS to Smithfield Fresh Meats Corp., M18079/P27232, Notice of

Intended Enforcement, USDA (Oct. 11, 2018), https://tinyurl.com/y2r7tr6f.

6 See, e.g., Lisa Sorg, The Plot Thickens on SBI Investigation of Duplin County

Employee Over Hog Lagoon Tests, NC POLICY WATCH (June 6, 2018),

https://tinyurl.com/y48flst8.


https://tinyurl.com/y2r7tr6f

https://tinyurl.com/y48flst8

7

shields industrialized agricultural businesses from liability related to their harmful

practices. Appellant and its amici now seek to make this law retroactive (see, e.g.,

O. Br. at 42-43), which would limit the rights of North Carolinians, like Plaintiffs,

and insulate Big Ag from liability for the myriad harms they inflict.

There are also no federal laws that regulate greenhouse gas (“GHG”)

emissions from agricultural operations—regardless of size or total annual emissions.

The industry strongly resists attempts to include large farms in emissions reporting

requirements. One such effort involves exempting CAFOs from reporting under the

Emergency Planning and Community Right-to-Know Act (EPCRA), 42 U.S.C. §

11000 et seq.,—a law that would allow people, like Plaintiffs, to discover if they live

in a community that has been contaminated by a dangerous release of a regulated

gas, like hydrogen sulfide. See Rural Empowerment Association for Community

Help, et al., v. U.S. Environmental Protection Agency, et al., No. 1:18CV02260

(D.D.C 2018).

Across the country, Big Ag is attempting to curtail transparency on the farm

by supporting laws that prevent video recording at animal enterprises. These so-call

“Ag-Gag” laws functions to limit free speech and the dissemination of truthful

information. North Carolina’s legislature passed an Ag-Gag law over the governor’s

veto that is now the subject of ongoing litigation. N.C. Gen. Stat. § 99A-2; People


8

for Ethical Treatment of Animals, Inc., et al., v. Stein, et al., No. 1:16-CV-00025

(M.D.N.C. 2017). Other similar laws have been found unconstitutional in violation

of First Amendment and equal protection rights. See, e.g., Animal Legal Defense

Fund v. Reynolds, 353 F.Supp.3d 812 (S.D.Iowa 2019), appeal docketed, No. 19-

1364 (8th Cir. Feb. 22, 2019); Animal Legal Defense Fund v. Herbert, 263 F.Supp.3d

1193 (D.Utah 2017). By criminalizing recording at CAFOs and slaughter facilities

and subjecting whistleblowers to significant exemplary damages, North Carolina’s

Ag-Gag law has a chilling effect on uncovering unethical or illegal treatment of

animals and disseminating such information to the public. N.C. Gen. Stat. § 99A-

2(d)(4).

North Carolina’s Department of Environmental Quality is also limiting

transparency by maintaining that citizen complaints to the agency regarding CAFOs

are exempt from public disclosure unless or until a formal agency sanction against

the offender is issued, which happens rarely. See N.C. Gen. Stat. §143-215.9D. The

evident purpose of these anti-access laws is to prevent precisely the kind of open and

transparent access that would document the real farm conditions, expose animal

abuses, and verify nuisance sources. Access and transparency frighten Big Ag

because the unfiltered reality is that their practices harm animals, the environment,

public health, and cause the nuisances affecting Plaintiffs.


9

IV. ARGUMENT

A. Extreme Animal Confinement and Related Practices Cause Egregious

Animal Suffering that is Intrinsically Linked to the Nuisances at Issue.

There is a tight connection between intensive and cruel confinement and the

environmental and public health threats faced by Plaintiffs.

1. Animals at Smithfield Finishing Facilities, like Kinlaw Farms, are

Raised in Extreme Confinement.

Cruel and inhumane practices of industrialized factory farming include

producing animals indoors in extreme confinement with no outdoor access. Kinlaw

Farms, for instance, held thousands of pigs in concrete floored warehouses licensed

to hold 14,688 pigs. JA140-41, 5202, 5208. These animals, like millions of others

produced by Appellant each year, live in extreme confinement and filthy conditions

(see, e.g., JA6758-64) generating millions of gallons of waste that is released into

the environment causing Plaintiffs’ nuisance. JA6201.

The photographs Plaintiffs took on their site visits to Kinlaw Farms revealed

overcrowded pigs covered in feces:


10

JA6762. Contrast this reality with the pristine feces-free pictures of the purported

interiors of confinement sheds on Smithfield’s website and sustainability reports:


11

JA6458. In HSUS’s experience Plaintiffs’ photos are more representative of mass

pork production than those featured in the company’s marketing materials.7

Crowding pigs in extreme confinement causes stress, abnormal behaviors, and

increases the spread of disease, not only amongst the pigs but also to human

populations.8 Indeed, ten percent of pigs die in confinement most likely due to

complications from their overcrowded environment and lack of individualized

veterinary care. JA5201-02, 9014. These dead pigs are then placed in bins outside

the finishing facility – contributing to the odor and fly nuisances of which Plaintiffs

complain. See, e.g., JA2517, 4956, 7286.

2. Animals at Smithfield Sow Facilities are Kept in Crates and Piglets

are Born and Weaned in Extreme Confinement.

Another of Appellant’s extreme confinement practices is holding mother pigs

in gestation and farrowing crates—small metal cages that individually confine and

restrict sows. Smithfield keeps 975,000 breeding sows in the U.S. and more than 1.2

million worldwide, many, if not all, of which live for weeks on end in torturous

7 See An HSUS Report: The Welfare of Animals in the Pig Industry, HSUS,

https://www.humanesociety.org/sites/default/files/docs/hsus-report-pig-industry-

welfare.pdf.

8 Id.


https://www.humanesociety.org/sites/default/files/docs/hsus-report-pig-industry-welfare.pdf

https://www.humanesociety.org/sites/default/files/docs/hsus-report-pig-industry-welfare.pdf

12

isolation unable to move freely.9 JA8941. For approximately six weeks after the

sows are inseminated and four weeks after they give birth Smithfield confines sows

in cruel crates, where they are unable to even turn around.10

As Smithfield euphemistically explains, “Sows are kept in individual stalls for

35 – 42 days after breeding.”11 The sows are then moved to group confinement for

67 days—which means that for more than a third of the sow’s life, Smithfield is still

confining her in a small, individual, metal crate, which the company misleadingly

calls an “individual farrowing stall.”12

HSUS investigations at a Smithfield facility have documented horrific crating

9 Betsy Freese, Pork Powerhouses® 2018: Ramping Up, SUCCESSFUL FARMING

(Sept. 30, 2018), https://www.agriculture.com/livestock/pork-powerhouses/pork-

powerhouses-2018-ramping-up.

10 See Smithfield makes more progress on gestation-crate-free pledge, HSUS (Jan.

8, 2018), https://blog.humanesociety.org/2018/01/smithfield-makes-progress-

gestation-crate-free-pledge.html (“While we laud the company's progress, we also

don't want to overstate it”); compare, Press Kit: Investigation Exposes Piles of Dead

Piglets Rotting In Mother's Feces At Smithfield, DIRECT ACTION EVERYWHERE,

https://www.directactioneverywhere.com/press-costcos-bloody-secret/.

11 Ashley DeDecker, PhD., The Smithfield Experience: Comparing ESF and Trough

Feeding for Group Housed Sows 28, SMITHFIELD (2016),

https://tinyurl.com/yyrskyoc.

12 2017 Sustainability Report: Housing of Pregnant Sows, SMITHFIELD,

https://www.smithfieldfoods.com/integrated-report/2017/animal-care/housing-of-

pregnant-sows; see also JA6479.


https://www.agriculture.com/livestock/pork-powerhouses/pork-powerhouses-2018-ramping-up

https://www.agriculture.com/livestock/pork-powerhouses/pork-powerhouses-2018-ramping-up

https://blog.humanesociety.org/2018/01/smithfield-makes-progress-gestation-crate-free-pledge.html

https://blog.humanesociety.org/2018/01/smithfield-makes-progress-gestation-crate-free-pledge.html

https://www.directactioneverywhere.com/press-costcos-bloody-secret/

https://tinyurl.com/yyrskyoc

https://www.smithfieldfoods.com/integrated-report/2017/animal-care/housing-of-pregnant-sows

https://www.smithfieldfoods.com/integrated-report/2017/animal-care/housing-of-pregnant-sows

13

practices.13

14

An investigator, working for over a month inside a Smithfield/Murphy-Brown

breeding facility housing more than 1,000 sows, documented sows confined inside

crates so small the animals could barely move for virtually their entire lives; sows

so frustrated by their extreme confinement had bitten their bars so incessantly that

blood from their mouths coated the fronts of their crates; sows suffering from open

pressure sores and other ulcers and wounds that developed from their confinement

and inability to change positions; sows with abscesses that sometimes formed from

13 Undercover at Smithfield Foods, HSUS (2010), https://tinyurl.com/y5ctdvsr.

14 Id.


https://tinyurl.com/y5ctdvsr

14

simple scratches due to ever-present bacteria; and piglets born prematurely in

gestation crates that fell through the slats and died in manure pits.15

For humane reasons, several states have banned the use of gestation crates.

See, e.g., Cal. Health & Safety Code §§ 25990-94; Mich. Comp. Laws § 287.746. In

2007, Smithfield announced they were “convert[ing] from gestation stalls to group

housing” by 2017 in a commitment to improved animal welfare.16 Indeed, Smithfield

claims to have “reached [its] industry-leading goal to convert to group housing for

pregnant sows on all company-owned farms in the United States.”17 Smithfield even

touts earning HSUS’s praise regarding its commitment to transition to group

housing. JA6479.

Yet, Smithfield has failed to meaningfully uphold its promise to transition its

pigs to a crate free environment. For instance, as noted above, sows at Smithfield

facilities are still crated for over a third of their lives—creating a loophole that

15 Id.

16 Smithfield Foods Makes Landmark Decision Regarding Animal Management,

SMITHFIELD (Jan. 25, 2007), https://tinyurl.com/yygyxnkk.

17 2017 Sustainability Report: Sustainability Goals & Targets, SMITHFIELD,

https://www.smithfieldfoods.com/integrated-report/2017/governance-

management/sustainability-goals-targets.


https://tinyurl.com/yygyxnkk

https://www.smithfieldfoods.com/integrated-report/2017/governance-management/sustainability-goals-targets

https://www.smithfieldfoods.com/integrated-report/2017/governance-management/sustainability-goals-targets

15

seriously undermines Smithfield’s commitments.18 As exposed in an undercover

investigation, several Smithfield facilities in North Carolina between June 2017 and

February 2018 were still using crates for pregnant and lactating pigs.19 Misleadingly,

Smithfield’s commitments are only for company-owned operations, but do not

pertain to any of its contract sow breeders such that many of the pigs used in

Smithfield’s pork production continue to be crated for life.20 Indeed, even a

Smithfield Vice President of Hog Production who owns a Smithfield contract sow

farm testified that his sows are still being crated and the company has done nothing

to incentivize transitioning to more humane options. See Testimony of Dr. Terry

Coffey, Artis, et al., v. Murphy-Brown, LLC, No. 7:14-CV-237-BR, Doc. 262 at 138,

143-49 (July 26, 2018).

Smithfield’s disregard for its public promises to animal welfare are likely

emblematic of its current commitments to any nuisance abatements or environmental

improvement plans.

18 Supra n.17 (“Sows are moved into individual farrowing stalls where they give

birth and nurse their piglets until they are weaned”).

19 Dylan Mathews, America’s Largest Pork Producer Pledged to Make Its Meat

More Humane. an Investigation Says It Didn’t, VOX (May 8, 2018),

https://tinyurl.com/y5j2hmd3.

20 See supra n.17.


https://tinyurl.com/y5j2hmd3

16

3. Smithfield Pigs are Transported in Extreme Confinement.

Mass pig transport is yet another practice where pigs are intensely confined,

causing extreme stress and suffering. Pigs are transported in slatted trucks, like the

trucks Plaintiffs claim cause noise pollution (e.g., JA7156, 7248, 7260-61, 7271-72),

in which pigs are crammed in crates that are sometimes stacked. Handling and

transport are highly stressful procedures, and some pigs become so fatigued, injured,

or sick that they become non-ambulatory, unable to stand and walk. Roughly 1% of

all transported pigs arrive at slaughter plants either dead or non-ambulatory due to

injury, fatigue, or illness.21

During transport pigs can experience several stressors, including rough

handling, crowding, temperature extremes, unfamiliar surroundings, and social

regrouping, which may lead to fighting.22 Pigs also experience hunger, dehydration,

and accompanying stress and fatigue in response to nutrient withdrawal in

21 See Ritter MJ et al., Effect of floor space during transport of market-weight pigs

on the incidence of transport losses at the packing plant and the relationships

between transport conditions and losses, 84 J. ANIMAL SCI. 2856 (2006), available

at https://www.ncbi.nlm.nih.gov/pubmed/16971589.

22 See, e.g., P.D. Warriss, The Welfare of Slaughter Pigs During Transport, 7

ANIMAL WELFARE 365 (1998), available at

https://www.ingentaconnect.com/contentone/ufaw/aw/1998/00000007/00000004/a

rt00002.


https://www.ncbi.nlm.nih.gov/pubmed/16971589

https://www.ingentaconnect.com/contentone/ufaw/aw/1998/00000007/00000004/art00002

https://www.ingentaconnect.com/contentone/ufaw/aw/1998/00000007/00000004/art00002

17

preparation for transport.23

4. Antibiotic Use Threatens Human Lives and Makes Extreme

Confinement Possible, Thus Facilitating Animal Suffering.

Keeping animals alive in extreme confinement requires the use of antibiotics

and other drugs to stave off disease and infection. While Smithfield claims to not

use “medically important antibiotics,” it does admit to using antibiotics for four main

purposes: to treat disease, prevent disease, control disease, and promote growth.

JA6474.24 Such claims imply that antibiotic use is limited to specifically targeted

animals, however in reality the drugs are administered herd-wide. JA6478.

To control the spread of infection, antimicrobial agents are administered not

only to sick animals but also to those that are likely to encounter ill animals.25

Because of the close quarters, if one animal is sick, every pig in the herd is

susceptible to illness. Antibiotic use is thus harmful to animals because it allows for

the continued use of extreme confinement practices. Dosing pigs with antibiotics

23 See id.

24 See also Corporate Social Responsibility Report 2009/10 54-55, SMITHFIELD,

available https://www.smithfieldfoods.com/pdf/past-reports/smi_csr_10.pdf.

25 See Jerome A. Paulson, Theoklis E. Zaoutis, Nontherapeutic Use of Antimicrobial

Agents in Animal Agriculture: Implications for Pediatrics, 136 PEDIATRICS e1670

(2015), available at http://pediatrics.aappublications.org/content/136/6/e1670; see

also JA5205.


https://www.smithfieldfoods.com/pdf/past-reports/smi_csr_10.pdf

http://pediatrics.aappublications.org/content/136/6/e1670

18

also harms animals because the ailments of individual pigs often go overlooked as

nontherapeutic use can mask issues.26 This practice in turns harms people, like

Plaintiffs, by allowing the extreme confinement to continue, thus continuing its

harmful effects, and leaching these antibiotics into the environment (see discussion

infra pp. 22-26).

5. Additional Animal Suffering Associated with Factory Farming

Practices Used by Smithfield.

In addition to the tight confinement, animals suffer from the barren, unclean

environments in which they are raised. As seen in Plaintiffs’ photos, pigs are raised

in warehouse-like conditions with concrete, slatted flooring and absolutely no

enrichments. See, e.g., JA5209. These unnatural environments do not foster pigs’

natural disposition as social, curious, clean creatures, and offer little opportunity for

pigs to display their full range of complex foraging and exploratory behavior.27

Consequently, behavioral abnormalities, such as tail or ear-biting and

aggression, arise due to environmental and social deficiencies.28 Even Smithfield

26 P. Wallgren, L. Melin, Weaning Systems in Relation to Disease, THE WEANER PIG:


Varley, J. Wiseman eds., 2001).

27 See Andrew Fraser, Farm Animal Behaviour 181 (Baillière Tindall., 2d ed. 1980).

28 D. Smulders et al., Tail and ear biting lesions in pigs: an epidemiological study,

17 ANIMAL WELFARE (2008).


19

acknowledges an increase in these tendencies, especially when ammonia levels are

high. JA6807. Tail biting can result in injury, abscess, systemic infection, and, in

severe cases, can escalate into cannibalistic behavior.29

This behavior can be reduced by providing additional space, straw, and other

enrichments.30 Straw bedding is usually eliminated in indoor operations due to cost

and incompatibility with slatted floors.31 This is troublesome since the surface on

which pigs are kept affects their welfare—poor flooring can cause pigs to suffer from

lameness and a variety of foot problems.32

Poor air quality caused by dust from feed particles, dander, and fecal material,

and odors and noxious gases, including ammonia, hydrogen sulfide, and methane,

29 See Neville Gregory and Temple Grandin, ANIMAL WELFARE AND MEAT

PRODUCTION 108-109 (CABI 2d ed. 2007); The welfare of intensively kept pigs:

Report of the Scientific Veterinary Committee 4.1.3, (Sept. 30, 1997), available at

https://ec.europa.eu/food/sites/food/files/animals/docs/aw_arch_1997_intensively_

kept_pigs_en.pdf.

30 See Jon Day, Heleen Van de Weerd, and Sandra Edwards, The Effect of Varying

Lengths of Straw Bedding on the Behaviour of Growing Pigs, 109 SCIENCE DIRECT

(2008).

31 See Palmer Holden and M.E. Ensiminger, SWINE SCIENCE 375-378 (Pearson

Prentice Hall, 7TH 3D. 2006).

32 See supra n.29.


https://ec.europa.eu/food/sites/food/files/animals/docs/aw_arch_1997_intensively_kept_pigs_en.pdf

https://ec.europa.eu/food/sites/food/files/animals/docs/aw_arch_1997_intensively_kept_pigs_en.pdf

20

from decomposing animal waste, may lead to additional health problems.33 Serious

health consequences for pigs from dust and gases include pneumonia, pleuritis, and

increased neonatal mortality.34 High concentrations of ammonia and dust do not only

create a nuisance for Plaintiffs but can also reduce the ability of pigs to resist

bacterial infections, including infectious atrophic rhinitis, and may lead to other

diseases, like enzootic pneumonia, porcine reproductive and respiratory syndrome,

and swine influenza.35

6. Animal Cruelty Witnessed at Smithfield’s Facilities.

The harsh practices used by Smithfield in its production of pork often

cultivates an attitude of extreme disregard to animals under its care. Witnessing or

engaging in animal cruelty can lead to even more acts of cruelty.36 HSUS and other

33 See supra n.29, Gregory and Grandin at 110.

34 See KJ Donham, Association of Environmental Air Contaminants with Disease

And Productivity in Swine, 52 AM. J. OF VETERINARY RES. (1991), available at

https://www.ncbi.nlm.nih.gov/pubmed/1767997.

35 See J.F. Robertson, D. Wilson, and W.J. Smith, Atrophic Rhinitis: The Influence

of the Aerial Environment, 50 ANIMAL PRODUCTION (1990); C.M. Wathes, Aerial

Pollutants from Weaner Production, THE WEANER PIG: NUTRITION AND

MANAGEMENT 259-271 (CAB International Publishing, M.A. Varley, J. Wiseman

eds., 2001).

36 See, e.g., Timothy Blackwell, Production Practices and Well-Being: Swine, THE

WELL-BEING OF FARM ANIMALS: CHALLENGES AND SOLUTIONS 241-269 (Blackwell

Publishing, G. John Benson, Bernard E. Rollin eds., 2004).


https://www.ncbi.nlm.nih.gov/pubmed/1767997

21

groups have documented willful acts of abuse and cruelty to pigs by workers at large-

scale farm operations, uncovering widespread cruelty.

For instance, investigators documented several employees at a North Carolina

pig breeding facility owned by Appellant dragging and beating animals.37 At a

Smithfield sow facility, HSUS’s investigator observed employees jabbing a lame

sow’s neck and back with gate rods to force her to move, and witnessed a pig had

been thrown into a dumpster alive and breathing after the animal had been shot in

the forehead with a captive bolt gun.38 A later investigation found similar shocking

treatment of animals.39

Instances of egregious acts of cruelty are also often documented by federal

inspectors at slaughterhouses including those owned by Smithfield. At a Smithfield

plant in Virginia, a worker directed ambulatory pigs to trample a crippled pig.40 A

37 See Catherine Donaldson-Evans, North Carolina Slaughterhouse Workers Fired

for Brutally Abusing Pigs, FOXNEWS.COM (May. 18. 2015),

https://tinyurl.com/y65egbm7.

38 Undercover at Smithfield, HSUS (2010), https://tinyurl.com/y5ctdvsr.

39 Press Kit: Investigation Exposes Piles of Dead Piglets Rotting In Mother's Feces

At Smithfield, DIRECT ACTION EVERYWHERE,

https://www.directactioneverywhere.com/press-costcos-bloody-secret/.

40 Petition calling for regulations under the Humane Methods of Livestock Slaughter

Act and Federal Meat Inspection Act that will decrease cruelty to farm animals at

slaughter, at 29 (Sept. 1, 2015), https://tinyurl.com/y4nhada4.


https://tinyurl.com/y65egbm7

https://tinyurl.com/y5ctdvsr

https://www.directactioneverywhere.com/press-costcos-bloody-secret/

https://tinyurl.com/y4nhada4

22

FSIS inspector observed a worker at a Smithfield plant in NC attempting multiple

times to restrain and stun a non-ambulatory, condemned pig while it was pinned

against a wall, squealing, and trying to get away.41 Time and time again the industry

claims these acts are perpetrated by a few bad apples.42 But this habitual pattern is

not isolated to a few criminals; animal cruelty is a byproduct of the extreme

production practices used by Smithfield.

B. The Risk of Future Harm is Substantial, Not Just for Plaintiffs and the

Pigs in Appellant’s Care, but for All Animals.

Future injury is certain should Smithfield continue to operate using extreme

confinement and lagoon and sprayfield waste management practices. These

practices cause the nuisances Plaintiffs experience, are massive threats to public

health and safety, and contribute to the growing existential threat of climate change.

1. Smithfield’s Operations Threaten Public Safety with Major

Biosecurity Risks.

Large-scale pork operations are a serious threat to public health. The problems

associated with them, including the spread of antibiotic-resistant bacteria and lethal

viruses, carry nationwide economic and health consequences. Pigs grown in

41 Letter from FSIS to Smithfield Fresh Meats Corp., M18079/P27232, Notice of

Intended Enforcement, USDA (Jan. 9, 2019), https://tinyurl.com/y6aqd9c5.

42 See, e.g., Phil Walzer, Smithfield Fires Three in Probe of Abuse on Pig Farm, THE

VIRGINIAN-PILOT (Dec. 22, 2010), https://tinyurl.com/y2wacq4r.


https://tinyurl.com/y6aqd9c5

https://tinyurl.com/y2wacq4r

23

cramped, unclean conditions are far more likely to carry a multitude of dangerous

diseases, including swine influenza (see discussion supra p. 20), which can harm

farm workers and the public and potentially punch a multi-billion-dollar hole in the

U.S. economy.

Disregarding broad scientific consensus that the continuous, herd-wide use of

antibiotics to raise pigs leads to the development and spread of antibiotic-resistant

bacteria,43 Smithfield continues to use antibiotics on a mass scale (see discussion

supra p. 17). This type of administration is the “perfect recipe for disaster” because

administering low-dose antibiotics through feed introduces only enough drugs to kill

the non-resistant strains, which leaves more opportunities for harder-to-kill resistant

strains to develop.44 Antibiotic- resistance is a “most urgent global risk.”45

Pork finishing operations are particularly susceptible to the development of

43 See, e.g., Jim O’Neill et al., Tackling Drug-Resistant Infections Globally: Final

Report and Recommendations, THE REVIEW ON ANTIMICROBIAL RESISTANCE 1, 24

(2016), available at https://amr-

review.org/sites/default/files/160518_Final%20paper_with%20cover.pdf.

44 Our Big Pig Problem, SCIENTIFIC AMERICAN (Apr. 1, 2011),

https://www.scientificamerican.com/article/our-big-pig-problem/; see also The

Judicious Use of Medically Important Antimicrobial Drugs in Food-Producing

Animals, FDA CTR. FOR VETERINARY MED. (June 28, 2010) at 14, available

https://tinyurl.com/y48q62w3.

45 Press Release: High-Level Meeting on Antimicrobial Resistance, GEN. ASSEMBLY

OF THE UNITED NATIONS (Sept. 21, 2016), available https://tinyurl.com/y5upsqxv.


https://amr-review.org/sites/default/files/160518_Final%20paper_with%20cover.pdf

https://amr-review.org/sites/default/files/160518_Final%20paper_with%20cover.pdf

https://www.scientificamerican.com/article/our-big-pig-problem/

https://tinyurl.com/y48q62w3

https://tinyurl.com/y5upsqxv

24

antibiotic-resistant bacteria.46 Antibiotic-resistant bacteria can thrive in pig waste

and swine manure has been associated with zoonotic bacterial pathogens such as

“Bacillus anthracis, Brucella spp., Campylobacter spp., Chlamydia spp.,

[enteropathogenic] Escherichia coli, Leptospira spp., Listeria monocytogenes,

Mycobacterium spp., Salmonella spp., and Yersinia spp.”47

Antibiotic-resistant bacteria from manure can jump to human populations via

various environmental pathways—through the air as dust, up from the soil into

edible crops, and into groundwater and surface waterways. Moreover, a high

percentage of feed antibiotics “pass unchanged into manure waste” and end up in

nature.48 This is especially worrisome since the pigs at Kinlaw Farms produced

153,000 pounds of pig waste every day. JA9027. The threat of disease along with

other associated harms contribute to low life expectancy in North Carolina

46 See Rebecca Goldburg et al., The Risks of Pigging Out on Antibiotics, 321 SCIENCE

(2008); Shylo E. Wardyn et al., Swine Farming is a Risk Factor for Infection With

and High Prevalence of Carriage of Multidrug-Resistant Staphylococcus Aureus 61,

CLINICAL INFECTIOUS DISEASES (2016).

47 Cherie J. Ziemer, Fate and Transport of Zoonotic, Bacterial, Viral, and Parasitic

Pathogens During Swine Manure Treatment, Storage, and Land Application, 88 J.

ANIM. SCI. (2010); see also JA5205-06.

48 Precautionary Moratorium on New Concentrated Animal Feed Operations, AM.

PUB. ASS’N (2003), available https://tinyurl.com/yyz7xu4l; see also Yogesh

Chander et al., Antibacterial Activity of Soil-Bound Antibiotics, 34 J. ENV’T.

QUALITY 1952 (2005).


https://tinyurl.com/yyz7xu4l

25

communities near pig CAFOs.49

Globally, about 700,000 people die every year due to infections that

antibiotics once reliably treated.50 “By 2050, an estimated 10 million deaths per year

globally will be attributable to antimicrobial resistance, with a cumulative economic

cost of US $100 trillion.”51 If realized, this number would exceed the combined

number of deaths from cancer and diabetes worldwide each year.52

The spread of mutant viruses is also on the rise. Just this March, USDA

confiscated 1 million pounds of pork products smuggled in from China, Smithfield’s

home country, “where there is an outbreak of African swine fever[,] the highly

contagious and deadly disease [that] affects both domestic and feral (wild) pigs and

49 Julia Kravchenko, MD, PhD. et al., Mortality and Health Outcomes in North

Carolina Communities Located in Close Proximity to Hog Concentrated Animal

Feeding Operations 79 N.C. MED. J. (2018), available at

www.ncmedicaljournal.com/content/79/5/278.full.

50 Maryn McKenna, The Coming Cost of Superbugs: 10 Million Deaths Per Year,

WIRED (Dec. 15, 2014), www.wired.com/2014/12/oneill-rpt-amr/.

51 Karen L Tang et al., Restricting the Use of Antibiotics in Food-Producing Animals

and Its Associations with Antibiotic Resistance in Food-Producing Animals and

Human Beings: A Systematic Review and Meta-Analysis, THE LANCET PLANETARY

HEALTH e316 (2017), available at https://doi.org/10.1016/S2542-5196(17)30141-9.

52 Supra n.50.


http://www.ncmedicaljournal.com/content/79/5/278.full

http://www.wired.com/2014/12/oneill-rpt-amr/

https://doi.org/10.1016/S2542-5196(17)30141-9

26

there is no treatment or vaccine available for it.”53

In 2009, an H1N1 swine-origin flu pandemic sickened 60.8 million

Americans, hospitalized 274,304, and killed 12,469, including more than a thousand

children, as estimated by the Centers for Disease Control and Prevention.54 The

genetic fingerprinting of this flu was traced back to North Carolina pig farms.55 This

is not surprising because North Carolina is the second largest pork producing state.

JA4863. And assuming most are run like Smithfield’s facilities, where pigs are left

to wallow indefinitely in Salmonella-contaminated pens, the disease incubation

potential is extremely high. Influenza strains can rapidly spread continent wide, as

they did within a year of emerging in North Carolina, thanks to long-distance pig

transport.56

53 USDA Continues to Prevent African Swine Fever from Entering the U.S.: Provides

New Resources to Raise Awareness of the Deadly Disease, USDA APHIS (Mar. 3,

2019), https://content.govdelivery.com/accounts/USDAAPHIS/bulletins/237c928.

54 Sundar S. Shrestha et al., Estimating the burden of 2009 pandemic influenza A

(H1N1) in the United States (April 2009-April 2010), 52 CLIN. INFEC. DIS. S75-82

(2011).

55 Trifonov et al., The Origin of the Recent Swine Influenza A(H1N1) Virus Infecting

Humans, 14 EURO SURVEILL. (2009), available

http://www.eurosurveillance.org/ViewArticle.aspx?ArticleId=19193.

56 See Smith et al., Origins and evolutionary genomics of the 2009 swine-origin

H1N1 influenza A epidemic, 459 NATURE 1122 (2009),

https://www.nature.com/articles/nature08182.pdf; Bernice Wuethrich, Chasing the


https://content.govdelivery.com/accounts/USDAAPHIS/bulletins/237c928

http://www.eurosurveillance.org/ViewArticle.aspx?ArticleId=19193

https://www.nature.com/articles/nature08182.pdf

27

2. Smithfield’s Practices Increase Climate Change Risks and

Environmental Harms that Impact All Animals.

Smithfield’s use of industrialized practices not only causes the nuisances

Plaintiffs’ suffer but also contributes to global climate change, which represents a

massive threat to human and animal life around the globe. Industrialized agricultural

is one of the top contributors to greenhouse gas (“GHG”) emissions—releasing 14.5-

16.5 percent of all human-produced GHG emissions57—and is set to surpass the oil

industry as the biggest GHG-emitter.58 Should Big Ag continue as it has, the industry

will take up 81% of the maximum allotted amount of GHG emissions under the Paris

Agreement by 2050, leaving little room for other industries to function and meet this

goal.59 This is deeply concerning especially in the context of a United Nations study

warning that air pollution related to climate change could cause millions of

Fickle Swine Flu, 299 SCIENCE 1502 (2003), available

http://science.sciencemag.org/content/299/5612/1502.full.

57 Helen Harwatt, Including Animal to Plant Protein Shifts in Climate Change

Mitigation Policy: A Proposed Three-Step Strategy, Climate Policy, 19:5, 533-541

(November 2018), available

https://www.tandfonline.com/doi/full/10.1080/14693062.2018.1528965; see also

infra n.77 at xii.

58 See How Big Meat and Dairy are Heating Up the Planet, IATP, GRAIN (July 18,

2018), https://www.iatp.org/emissions-impossible; see also Josh Gabbatiss, Meat

and Dairy Companies to Surpass Oil Industry as World’s Biggest Polluters, Report

Finds, INDEPENDENT (July 18, 2018), https://tinyurl.com/y8rj78h5.

59 Id.


http://science.sciencemag.org/content/299/5612/1502.full

https://www.tandfonline.com/doi/full/10.1080/14693062.2018.1528965

https://www.iatp.org/emissions-impossible

https://tinyurl.com/y8rj78h5

28

premature deaths by 2050.60

We do not have to wait until 2050, however, to face the consequences of the

industry’s willful disregard of its environmental harms. Industrialized pig

production facilities are already a major source of water and air pollutants, which

have devastating impacts on the environment and public health. Such harms are well

documented in North Carolina. See, e.g., JA1051-1093. These harms are exacerbated

by the many hurricanes that have devastated the area. Most recently, Hurricane

Florence ravaged North Carolina, causing dozens of pig manure lagoons to

overflow, releasing waste into the environment,61 and reportedly killing 3.4 million

chickens and 5,500 pigs.62

The damage from hurricanes and severe weather events is predictable and will

continue to worsen. Researchers at the National Oceanic and Atmospheric

Administration have suggested that hurricanes in the Atlantic Ocean have grown

60 Global Environment Outlook 6 498, UNITED NATIONS ENVIRONMENT

PROGRAMME, (Mar. 4, 2019), https://tinyurl.com/y2f7s84h.

61 Animal Operations - Swine Lagoons, NC DEQ (Oct. 9, 2018),

https://deq.nc.gov/news/deq-dashboard#animal-operations---swine-lagoon-

facilities.

62 Jacob Bunge, After Florence, Smithfield Plans Fresh Look at Disaster Prep, WSJ

(Sept. 27, 2018), https://www.wsj.com/articles/after-florence-smithfield-plans-

fresh-look-at-disaster-prep-1538070269.


https://tinyurl.com/y2f7s84h

https://deq.nc.gov/news/deq-dashboard#animal-operations---swine-lagoon-facilities

https://deq.nc.gov/news/deq-dashboard#animal-operations---swine-lagoon-facilities

https://www.wsj.com/articles/after-florence-smithfield-plans-fresh-look-at-disaster-prep-1538070269

https://www.wsj.com/articles/after-florence-smithfield-plans-fresh-look-at-disaster-prep-1538070269

29

considerably worse and more frequent due in large part to climate change.63 Just two

years earlier, Hurricane Matthew flooded waste lagoons and caused $400 million in

damage to major crop fields in North Carolina and killed 1.9 million chickens and

roughly 2,800 swine.64 JA4099. In 1999, Hurricane Floyd caused about 21,500

swine deaths and the flooding and breach of several pig waste lagoons.65

These climate-enhanced weather events are costing billions in losses.66 The

Midwest is experiencing the same kind of losses from severe flooding, with early

estimates of lost crops and livestock approaching $1 billion in Nebraska alone.67 Big

Ag is caught in a pernicious cycle wherein the industry drives the climate change

that enhances extreme weather events that in turn harms the industry and small

farmers, including HSUS partners who are trying to compete using more humane

63 Kieran T. Bhatia et al., Recent Increases in Tropical Cyclone Intensification Rates,

NATURE (Feb. 7, 2019), available https://www.nature.com/articles/s41467-019-

08471-z.

64 Ryan McCrimmon, Farmers Brace for Hurricane Florence, POLITICO (Sept. 12,

2018), https://tinyurl.com/y5hv7ckl.

65 Id.

66 See Carolinas Farms Could Take Billions in Losses From Florence, WWAY TV3

(Sept. 22, 2018), https://www.wwaytv3.com/2018/09/22/carolinas-farms-could-

take-billions-in-losses-from-florence/.

67 Humeyra Pamuk et al., U.S. Farmers Face Devastation Following Midwest

Floods, REUTERS (Mar. 20, 2019), https://tinyurl.com/y4nyqd2c.


https://www.nature.com/articles/s41467-019-08471-z

https://www.nature.com/articles/s41467-019-08471-z

https://tinyurl.com/y5hv7ckl

https://www.wwaytv3.com/2018/09/22/carolinas-farms-could-take-billions-in-losses-from-florence/

https://www.wwaytv3.com/2018/09/22/carolinas-farms-could-take-billions-in-losses-from-florence/

https://tinyurl.com/y4nyqd2c

30

and sustainable production practices.

Smithfield’s various proposed solutions, such as anaerobic digesters, do not

meaningfully reduce air or water pollution from the production process.68 So long

as these methods of production continue, primarily the practice of concentrating

large numbers of pigs, waste and its emissions will continue to exacerbate climate

change, and thus harm both people and animals.

The devastating effects of climate change have also increasingly impacted

global wildlife populations.69 Animals are uniquely defenseless against climate

change because, unlike humans, they cannot plan, mitigate, or, in many cases,

migrate to avoid the impacts of climate change.70 Wildlife impacts include, but are

not limited to, habitat loss or destruction by rising seas, wildfires, or warming

68 Hard To Digest: Greenwashing Manure Into Renewable Energy, FOOD AND

WATER WATCH (Nov. 2016),

https://www.foodandwaterwatch.org/sites/default/files/ib_1611_manure-digesters-

web.pdf.

69 Jonathan Lovvorn, Climate Change Beyond Environmentalism Part I:

Intersectional Threats and the Case for Collective Action, 29 Geo. Envtl. L. Rev. 1,

40 (2017), available at

https://gielr.files.wordpress.com/2017/04/zsk00117000001.pdf; see also Media

Release: Nature’s Dangerous Decline ‘Unprecedented’; Species Extinction Rates

‘Accelerating’, IPBES (2019), https://www.ipbes.net/news/Media-Release-Global-

Assessment.

70 Id.


https://www.foodandwaterwatch.org/sites/default/files/ib_1611_manure-digesters-web.pdf

https://www.foodandwaterwatch.org/sites/default/files/ib_1611_manure-digesters-web.pdf

https://gielr.files.wordpress.com/2017/04/zsk00117000001.pdf

31

oceans, and the spread of parasites and pathogens, now thriving in warming areas,

that could kill animals directly or destroy key food sources.71

Appellant’s amici claim that Big Ag helps provide food security (see, e.g., Br.

of the Am. Farm Bureau Fed’n, et al. 3, 5, Doc. 28-1). But this claim is a red herring,

in part because the industry’s large-scale model and climate change contributions

have already affected productivity. Better use of resources—including not wasting

land, water, and calories by diverting each to fatten warehoused farm animals—

would result in more food production and greater food security.72 The food security

Smithfield claims to provide is hindered by its climate change inducing practices

that in turn lead to crop depletion.73 Global assessments predict changes in crop yield

under climate change and suggest disparities in food availability will escalate.74 For

71 Id. at 40-47.

72 See, e.g., Gidon Eshel et al., Land, Irrigation Water, Greenhouse Gas, and

Reactive Nitrogen Burdens of Meat, Eggs, and Dairy Production in the United

States, 33 PNAS 11999, fig. 4A (2014),

www.pnas.org/cgi/doi/10.1073/pnas.1402183111; see also Resolution Adopted by

the Human Rights Council 3 (2010),

http://www2.ohchr.org/english/bodies/hrcouncil/docs/13session/A.HRC.RES.13.4

_AEV.pdf.

73 The Future of Food and Agriculture: Trends and Challenges 41-44, FAO (2017),

http://www.fao.org/3/a-i6583e.pdf.

74 Id.; see also, C. Rosenzweig, M.L. Parry, Potential Impact of Climate Change on

World Food Supply, NATURE 367, 133 (1994).


http://www.pnas.org/cgi/doi/10.1073/pnas.1402183111

www2.ohchr.org/english/bodies/hrcouncil/docs/13session/A.HRC.RES.13.4_AEV.pdf

www2.ohchr.org/english/bodies/hrcouncil/docs/13session/A.HRC.RES.13.4_AEV.pdf

www.fao.org/3/a-i6583e.pdf

32

example, weather-related factors caused declines in global maize and wheat

production—foods that are largely grown to feed agricultural animals.75

As meat consumption in the U.S. continues to decline, while China and other

Asian countries are increasing their meat intake, the true costs of large-scale

industrial agriculture are shifting. See JA257.76 The global demand for meat is the

primary cause of agricultural methane emissions and many international companies,

like Chinese owned Smithfield, use this nation’s fertile lands to produce livestock.

While swine naturally produce significantly less methane than other livestock, like

cows, pigs still factor for roughly 9 percent of the livestock sector’s emission outputs

(caused mainly by feed production and liquid manure storage for the animals).77

Thus, American food security is not promoted by Smithfield’s practices, Americans

are instead paying the environmental costs of the production.78

75 Id.; see also, D.B. Lobell et al., Greater Sensitivity to Drought Accompanies Maize

Yield Increase in the U.S., MIDWEST. SCI. (2014).

76 See also Jonathan Lovvorn, Climate Change Beyond Environmentalism Part II:

Near-Term Climate Mitigation in a Post-Regulatory Era, 30 Geo. Envtl. L. Rev. 224

(2018), available at https://gielr.files.wordpress.com/2018/06/gt-gelr180001.pdf.

77 Tackling Climate Change Through Livestock: A Global Assessment of Emissions

and Mitigation Opportunities 35, FAO (2013),

http://www.fao.org/3/i3437e/i3437e.pdf.

78 See Doug Bock Clark, Why is China Treating North Carolina Like the Developing

World?, ROLLING STONE (2018), https://tinyurl.com/y7bjmetl.


https://gielr.files.wordpress.com/2018/06/gt-gelr180001.pdf

www.fao.org/3/i3437e/i3437e.pdf

https://tinyurl.com/y7bjmetl

33

Plaintiffs have a strong interest in preventing and mitigating harms that

agricultural induced climate change poses to human health, animals, and the

environment, including increased heat-related deaths, damaged coastal areas,

increased wildfire risk, disrupted ecosystems, more severe weather events, and

longer and more frequent droughts, as these effects will only exacerbate the

nuisances they experience and will inevitably cause them continuing harm.

V. CONCLUSION

Smithfield’s harmful practices create the nuisances Plaintiffs experience and

these practices subject millions of animals to constant pain and misery. Its actions

contribute significantly to climate change, which has massive economic and life-

threatening consequences. Therefore, it is essential that Smithfield not continue to

operate virtually unchecked and must not be allowed to carry on operating with

wanton disregard for Plaintiffs, the animals in its care and in the wild, and the greater

public.

Therefore, HSUS urges this Court to uphold the judgment below.

Dated: May 6, 2019 Respectfully submitted,

/s/Anna Frostic

Anna Frostic (D.C. Bar No. 977732)

The Humane Society of the United States


34


Suite 450


Phone (202) 676-2333, Fax (202)778-6126

[email protected]

Laura Fox (Va. Bar No. 85558)

Peter Brandt (D.C. Bar No. 982936)



Suite 450


Phone (202) 676-2334, Fax (202)778-6126

[email protected]

Attorneys for Amicus Curiae



mailto:[email protected]


35

CERTIFICATION OF COMPLIANCE WITH TYPE-VOLUME

LIMITATION, TYPEFACE REQUIEMENTS, AND TYPE STYLE

REQUIREMENTS

1. This brief complies with the type-volume limitation of Federal Rule of

Appellate Procedure 32(a)(7)(B), because this brief contains 6,468 words,

excluding the parts of the brief exempted by Federal Rule of Appellate

Procedure 32(f).

2. This brief complies with the typeface requirements of Federal Rule of

Appellate Procedure 32(a)(6), because this brief has been prepared in a

proportionally spaced typeface using Microsoft Word version 2010 in 14-

point Times New Roman font.

/s/Anna Frostic





(202) 676-2333

[email protected]

Attorney for Amicus Curiae




36

CERTIFICATE OF SERVICE

I certify that on May 6, 2019, the Brief of the Humane Society of The United

States as Amicus Curiae in Support of Plaintiffs-Appellees was served on all

parties or their counsel of record through the CM/ECF system.

/s/Anna Frostic





(202) 676-2333

[email protected]

Attorney for Amicus Curiae




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